Subsequent tamariki — section 18B criteria
Updated: 06 August 2019
The subsequent tamariki sections (18A to 18D) of the Oranga Tamariki Act 1989 outline what we must do when working with tamariki whose parents have had tamariki permanently removed from their care due to abuse or neglect in the past.
Working out whether the parent meets the criteria of section 18B determines whether the assessment needs to contain section 18A specific matters and whether an application to court must be made. This webpage outlines how to record that a person meets the criteria.
The section 18B criteria
Section 18B(1) of the Oranga Tamariki Act 1989 describes when this section applies to a person. There are 2 subsections to this:
- a person who has been convicted under the Crimes Act 1961 of the murder, manslaughter or infanticide of a tamaiti or rangatahi who was in their care or custody at the time of the death of te tamaiti or rangatahi, or
- a person who has had a tamaiti or rangatahi removed from their care and there is no realistic prospect that te tamaiti or rangatahi will be returned to that person’s care.
When a person meets this criteria, and they become the parent of a subsequent tamaiti, section 18A applies, an assessment must be undertaken and applications must be made to court based on whether the social worker believes the parent is likely to inflict, or allow to be inflicted, the kind of harm that led to the parent being a person described in section 18B.
For the assessment of the parent of a subsequent tamaiti to apply, the parent must:
- be a person described in section 18B (see above), and
- be the parent of a subsequent tamaiti, and
- have, or be likely to have, the care or custody of the subsequent tamaiti.
A person can meet the criteria of section 18B for the death of, or harm they caused to, a tamaiti or rangatahi aged 0 to 17 years of age. However, the assessment for section 18A relates to subsequent tamariki, meaning tamariki up to their 14th birthday.
When the previous harm was caused, the person must have had te tamaiti or rangatahi in their care, meaning their day-to-day care or custody (and not, for example, a babysitter). The assessment in relation to a subsequent tamaiti only takes place if the person who meets the criteria of section 18B is a parent of te tamaiti.
The term ‘parent’ means the mother, father or step-parent, and does not include other near relatives or those with custody or parenting orders.
It is important to note that section 18B refers to convictions under the Crimes Act 1961, meaning convictions made in New Zealand. If someone was convicted of a similar offence overseas, section 18B does not apply, but this does not hinder any other response to concerns if they were to parent or care for another tamaiti or rangatahi.
Flagging on CYRAS
A flag on CYRAS is applied to someone who meets the section 18B criteria, and will require an assessment as per section 18A if they become the parent of a subsequent tamaiti. The flag will appear against a person in CYRAS on person searches, and in the ‘demographics’ field of person details.
Only supervisors, practice leaders or solicitors will add a section 18B flag on CYRAS. This will be audited from time to time to ensure the flag is being applied correctly.
If at any time it is identified a flagged person is the parent of a tamaiti (other than te tamaiti currently being assessed), a new notification must be made for that tamaiti.
There will be people who meet the section 18B criteria who do not have a flag on CYRAS. In any new report of concern, where it is identified the parent has had a previous tamaiti or rangatahi removed, or they have caused the death of a tamaiti or rangatahi, the social worker will:
- be mindful of this criteria and establish whether it applies
- consult with a solicitor to establish whether the criteria is met, and if so will request a supervisor or practice leader to activate the section 18B flag for that person.
The section 18B flag will activate an indicator on a case on CYRAS when that person is added as a participant. The purpose of the indicator is to alert the social worker to the potential need to complete an assessment to address the section 18A matters, and for this to be visible to supervisors when reviewing workloads.
The section 18A indicator will show:
- on the site intake queue (while unallocated)
- on the social worker’s caseload (when allocated)
- in the case history
- in the case print
- on ‘the tree’ in the intake and child and family assessment or investigation phases on CYRAS.
If the flagged person who has been added as a participant in the phase is not a parent, or is a parent but will not have the care or custody of te tamaiti, the section 18A indicator can be removed. To remove the indicator, create a 'section 18A not required' casenote and enter a reason for the decision. When a supervisor or practice leader approves the casenote, the indicator will no longer display in that phase.
The section 18B flag should not be removed from the person unless it has been established that the reason for not undertaking the section 18A assessment is that the person does not meet the criteria for being flagged.
When section 18B is applied
The national contact centre (NCC) will receive information from the Police or Ministry of Justice about people who meet the criteria due to the murder, manslaughter or infanticide of a tamaiti or rangatahi in their care or custody. NCC will activate flags for these people and store the information provided (as there may not be a CYRAS record to store this information against). This can be accessed by social workers on request.
The flag must also be applied when a person has had a tamaiti or rangatahi removed from their care and there is no realistic prospect that te tamaiti or rangatahi will be returned as defined in section 18B(2) of the Act:
- The court has made a care or protection order, or a family group conference has agreed, that te tamaiti or rangatahi is in need of care or protection on a ground in section 14(1)(a) or (b), and
- the court made an order under section 101 or 110 of the Oranga Tamariki Act 1989 or section 48 of the Care of Children Act 2004, and
- the court has determined, or the family group conference has agreed, that there is no realistic prospect that te tamaiti or rangatahi will be returned to the person’s care.
When a social worker becomes aware that the section 18B criteria may have been met, they will consult with a solicitor to confirm this. The social worker will inform their supervisor, who will add the flag. Supervisors, solicitors and practice leaders have the ability to add or update the flag themselves if they become aware it is needed. Anyone adding or updating the flag must be certain that the criteria to do so have been met.
It is recommended that when adding a section 18B flag, the comments box below the flagging field is used to note which case this decision relates to and where to find further information.
The flag is located under the ‘demographics’ field in person details in CYRAS — click the ‘change’ button, and then confirm the application of the flag. CYRAS will hold a record of when the flag is added or updated and by whom. The last flag change is visible in the field.
When the flag is removed on CYRAS
The section 18B flag can be removed from a person’s record if:
- it has been applied in error, or
- the court determines it has been applied incorrectly, or
- the conviction for murder, manslaughter or infanticide is overturned.
The section 18B flag against a person can also be removed when they no longer require an assessment as part of the subsequent tamariki provisions as described tamariki — refer to section 18A(7) of the Oranga Tamariki Act 1989.
The section 18A subsequent tamariki assessment provisions no longer apply to a parent when:
- the court confirms a decision not to apply for a declaration, or
- a section 18A application for declaration on the ground section 14(1)(ba) is refused by the court, or
- before 1 July 2016, the parent was subject to a section 17 investigation (which includes a child and family assessment) in relation to a tamaiti who would have fallen within the definition of a subsequent tamaiti, and the social worker did not form the belief te tamaiti was in need of care or protection.
Whenever a person’s record is being merged or unmerged on CYRAS, it is important to check that the person or people who require flags are flagged correctly.
When 2 records are merged, and 1 person has a flag, then the merged record will also be flagged. If the record is then unmerged, the flag will remain with the record of the person who had it originally.
If 2 people are merged, then a flag is added, and then the record requires unmerging, the outcome will be that neither unmerged person will have a flag. The flag will need to be added again.
Only merge or unmerge a person’s record if you are certain it is required.
Reactivating a section 18B flag and indicator
It is not ideal to change a section 18B flag on someone’s CYRAS record several times due to uncertainty about whether they meet the criteria.
Be clear about your decision-making the first time. However, if you do reactivate someone’s section 18B flag because it was removed in error, and they are a parent of a subsequent tamaiti in a child and family assessment or investigation phase, you must also withdraw the ‘section 18A assessment not required’ casenote (if created) to reactivate the section 18A indicator on the case.